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Recently, the ATO indicated that superannuation funds with individuals as trustees may pay benefits as lump sums (without first starting to pay a pension). The ATO seems to have provided some clarification.

Paul Ellis

Superannuation

Until now there was a view that:

these funds could not pay lump sums due to constitutional law considerations and the ATO's refusal to state a view; and

the only way for these funds to pay a lump sum was to start a pension and then commute the pension to a lump sum (but first the members had to be paid the minimum amount required to be paid as a pension for the relevant year).

Cleardocs deed updated

In light of the ATO's comments, Cleardocs has changed the SMSF trust deed to give the trustee a discretion to pay a benefit as a lump sum (without the need to commence a pension) even if the fund's trustees are individuals.

Should you consider updating a fund's deed to take advantage of this change?

Funds with members who are close to reaching pension phase (and who might wish to take a lump sum instead of a pension) should consider updating their deed — even if it is just for this reason alone.

However, there is no need to update for this reason if the fund:

has a corporate trustee — the fund already has the power to pay a lump sum; or

is not close to commencing a pension.

The original position

Previously, the commonly held view was that the only way for an SMSF with individual trustees to pay benefits as a lump sum was to start a pension and then commute the pension to a lump sum — but first the members had to be paid the minimum amount required to be paid as a pension for the relevant year.

This view was held because for a superannuation fund to qualify as a regulated superannuation fund, its trustee must either be a constitutional corporation, or its governing rules (the trust deed), must provide that the sole or primary purpose of the fund is to provide old-age pensions (as opposed to lump sums) — see section 19(3) of the Superannuation Industry (Supervision) Act 1993 (SISA)

The clarification from the ATO

On 8 February 2006, the National Tax Liaison Group Superannuation Sub Committee asked the ATO to clarify the position. Although the ATO fell short of giving a clear endorsement, it stated that:

section 19 does not require the trustee to start a pension before providing a lump sum benefit;

the rules of the fund must provide that the fund's objective intention is to pay a pension; and

the lump sum must be paid in accordance with the fund's governing rules.

The ATO also touches on the issue in its recently updated publication Self Managed Superannuation Fundsā?? Role and responsibilities of trustees (NAT 11032-11.2005). The publication states that a fund with individual trustees must state that the fund was established for the sole or primary purpose of providing old age pensions — but the publication also states that this does not prevent the fund from paying lump sum benefits providing the trust deed allows for this.

Lawyer in Profile

Leigh Baring
Partner : 61 3 9258 3673

Leigh is a partner in the Maddocks Tax & Revenue team.

Leigh regularly provides advice on:

structuring of businesses and transactions;

mergers and acquisitions;

corporate reorganisations and distributions;

sale of businesses;

demergers;

capital raisings;

joint ventures and property developments;

international tax (both inbound and outbound);

succession planning; and

liquidations.

His advice covers both direct and indirect tax considerations.

Leigh advises Australian and multinational companies, high net worth individuals, accountants and financial advisers on all areas of taxation law.

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